The Judges Have Lost by Oswald Sobrino

The Judges Have Lost

by Oswald Sobrino

03/26/05

When you listen to the legal pundits defending the starvation of Theresa Marie Schiavo, what you hear again and again is a variation of one theme: the courts establish the facts, the courts have reviewed this again and again, the courts have decided otherwise.

They tell us to suspend moral judgment and to deliver our consciences and our common sense into the hands of judges and courts. The pundits tell us, in true relativistic fashion, to trust process over substance, to trust a so-called enlightened and highly educated elite over moral tradition.

That is a formula for a disastrous future for our country. Even in the military a soldier has no obligation to follow manifestly evil orders — such as an order to torture someone. Just recall the scandal over alleged torture in Iraq. But the same media that exploded over that scandal is now asking us to calm ourselves and stoically accept the starvation of an innocent person because "the courts" have handled it all for us.

Good judges and lawyers know that the authority of a court derives in the long run from maximizing the probability that all parties leave the court believing that they have at least been fairly heard. Otherwise, the fragile commodity of judicial authority evaporates quickly.

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Large numbers rightly believe that Theresa Schiavo has not been fairly treated in court. Her guardian is in a stunning conflict of interest by maintaining for years a politely termed "common law marriage" with another woman. But the courts have still let him have the final say over her life, even though her parents and siblings are eager to care for her.

Without a truly independent guardian about whom there is no reasonable doubt whatsoever, no sensible person can have any faith in the judicial process applied in this case. If some judge somewhere had simply made the amply justified common-sense decision to disqualify the spouse in this case as a guardian, we would not be here, because the parents of Theresa Schiavo would be the ones making the life or death decision.

You cannot ask people to blind themselves to reality and simply defer to the indefensible. What will be the result from this awful spectacle? My personal prediction is that many will now demand new laws to trim the power of judges given the tragedy that is unfolding before us. The judges in this matter, with some exceptions, have diminished themselves. Future laws will recognize that, as a whole, they cannot be trusted and are no longer worthy of our full confidence.

That's what happens in a morally relativistic culture. Fifty or sixty years ago it would have been unimaginable that a man living in open concubinage with another woman would be confirmed as a guardian with the power of life and death over his stricken spouse. But given the typical attitude that virtually anything goes and anything is acceptable in sexual matters, this open concubinage is granted the cultural cover of "privacy" and made irrelevant to the legal proceedings. That is the same cover of "privacy" that first justified the explosive marketing of contraceptives in the sixties and which was extended to justify abortion in the seventies.

Without a moral consensus, judges can't be trusted to make the right decisions, regardless of the procedure followed. That is why more and more laws will be passed restricting the discretion and powers of judges. Moral relativism makes for bad judges. So restrictive laws must step in to recognize that cultural reality. When a culture loses its moral bearings, trust disappears. And so does real authority for judges. We lack moral consensus about fewer and fewer things. We are in trouble.

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Oswald Sobrino is an attorney, a former Editor-in-Chief of the Loyola (New Orleans) Law Review, and a former law clerk to a U.S. District Judge. Oswald His daily columns can be found at the Catholic Analysis website. He is a graduate lay student at Detroit’s Sacred Heart Major Seminary. He recently published Unpopular Catholic Truths, a collection of apologetic essays, available on the Internet here.